Info Brief: Modern Debates—Executive Orders and the Administrative State

Learn about the President’s power to issue executive orders.

Now let’s talk about another modern debate over presidential authority: executive orders.

This debate is all about what powers the executive branch has to make decisions and take action without new legislation passed by Congress. It’s a big part of the way the executive branch has grown in size and influence over time.

But what exactly are executive orders?

The American Bar Association describes an executive order as “a signed, written, and published directive of the President.”

Executive orders go back to the very beginning of America—with President George Washington. They aren’t specifically mentioned in the Constitution. For instance, there’s no “Executive Order” Clause. However, they're rooted in the President’s role in leading the executive branch and the President’s Article II duty to “take care” that the laws are “faithfully executed.” In other words, the President is the boss of other people working in the executive branch of the government, and the President often uses executive orders to tell other executive-branch officials what to do.

Modern debates over executive orders and administrative power often boil down to one major question: Can the President do that?

For example, can the President:

Put government money towards building a border wall?
Issue a sweeping regulation to curb air pollution?
Issue an executive order blocking immigration from certain countries?
Require everyone in the nation to wear a mask? Or to stay at home?
The list goes on and on.

These are big questions, and they often have major implications for some of the biggest political issues facing the country. So, it’s important to understand what the president’s powers actually are.

Let’s look, as always, to the text of the Constitution.

As we’ve mentioned, the phrase “executive order” is nowhere in the Constitution. But there are still textual hooks that are at the heart of this debate over presidential power.

Let’s look at three main provisions:

Article I, Section 1: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

Article II, Section 1: “The executive Power shall be vested in a President of the United States of America….”

Article II, Section 3: The President “shall take Care that the Laws be faithfully executed . . . .”

Article I, Section 1, grants Congress all of the legislative powers of the United States. The President cannot assume the nation's legislative power!

At the same time, Article II, Section 1, means that the President is the only person who has the executive power to enforce laws passed by Congress. In other words, the President leads the executive branch.

And, as Article II, Section 3, requires, the President must "take Care" that the legislation that Congress passes is "faithfully executed"—which often requires the President to make decisions, create rules and regulations, issue executive orders, or otherwise act in order to ensure that the laws are actually enforced. To critics of presidential power, some of these actions can look an awful lot like legislation. And sometimes it can get even trickier than that!

Sometimes, Congress will use its legislative powers to craft laws that give broad authority and rulemaking power to administrative agencies—key parts of the executive branch—and other officials within the executive branch. Especially for technical, fast-paced, or emergency actions, supporters of broad congressional delegation argue that this can be just about the only way to make sure Congress’s goals become a reality! As we’ve already discussed, Congress is designed to be a slow, deliberative body. That’s a valid goal for constitutional design—but for some proponents of broad congressional delegation, it means that Congress sometimes needs to delegate its power to other agencies (under the executive branch) to act quickly when needed. At the same time, critics counter that Presidents and executive branch agencies often go beyond the authority granted to them by Congress and create new policies akin to new legislation.

So, the question is where to draw the line—and that is what many Supreme Court cases involving presidential power and administrative agencies (like the Environmental Protection Agency) hinge on.

Executive Orders at the Supreme Court

When it comes to presidential power, the landmark Supreme Court case is Youngstown Sheet & Tube Co. v. Sawyer (1952). (This is also known as “The Steel Seizure Case.”)

This case took place during the Korean War. Steel workers were going on strike, and President Truman responded by arguing that a steel strike was a threat to national security because the Army needed steel to conduct the war. Truman then decided on his own—in other words, without explicit congressional approval—to seize the steel mills under his Article II Commander-in-Chief Power. Truman argued that Article II made him commander-in-chief of the nation’s armed forces. Read broadly, this power gave him broad authority to take the actions necessary to fight (and win) a war. If the steel workers went on strike, that would undermine the war effort. Therefore, the President had the power to step in and seize the steel mills.

This dispute ended up before the Supreme Court, and the Court ruled against Truman. The Court concluded that Truman couldn’t seize the steel mills on his own.

Truman was shocked. He had appointed some of the Justices himself, and FDR—his political ally—had appointed the others.

To be clear, some Justices agreed with Truman—for instance, Chief Justice Fred Vinson (appointed by Truman), who was joined by Justices Minton and Reed. However, the majority ruled against him.

The Court concluded that the President’s Commander-in-Chief Power didn’t permit him to seize a steel mill inside the United States—even if it helped the war effort—without congressional approval.

The most influential opinion in the case was a concurring opinion by Justice Robert Jackson. There, Jackson identified three different categories for analyzing presidential power.

When the President acts with congressional approval, he has the maximum authority to act.
When he acts in the face of congressional disapproval, he has the least authority to act. (As Jackson wrote, the President’s power is “at its lowest ebb.”)
When Congress has neither approved nor disapproved of the President’s actions, the President then acts in a “zone of twilight”—somewhere between those two situations.

Applying his analysis to The Steel Seizure Case, Jackson reasoned that Congress hadn’t authorized the seizure of the steel mills and that the President had no non-military—in other words, no independent source of authority—to act. Therefore, Jackson concluded that the President had acted unconstitutionally.

So, what’s the big idea that arises from the Youngstown decision?

When the President acts side by side with Congress, his power is at its highest level. (The Supreme Court tends to uphold his actions.) However, when the President acts on his own—especially in the face of congressional disapproval—his powers are at their lowest level—and the Supreme Court may rule against him.

In the end, Jackson’s Youngstown concurrence remains a useful framework for analyzing constitutional debates over presidential power today. In particular, it’s a reminder to always ask the following question: Where is the President getting her authority act?

For instance, this is precisely the question that we ask when analyzing a President’s executive order. In those cases, the President is acting. But then, we must ask under what source (or sources) of legal authority?

Sometimes the President argues that the Constitution itself grants her the power to act.
Sometimes she draws on laws passed by Congress.
Sometimes she looks to previous court decisions to guide her actions.

Regardless, she must root her authority in some source of law. Otherwise, her executive actions are invalid.

Of course, once we establish that the President can look to some source of authority to act in a particular situation, we must still ask whether the President’s actions violate any other provisions of the Constitution—whether that’s a key Bill of Rights protection like free speech or religious liberty or some other part of the Constitution.

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